MIRZA VIQAS RAUF, J. The instant petition is directed against the order dated 01st of April, 2013, whereby the learned Additional District Judge, Kasur, while dismissing the revision petition filed by the petitioner affirmed the order dated 10th of December, 2011 passed by learned Civil Judge 1st Class, Kasur.
2. The facts in precision necessary for adjudication of instant petition are that respondent No.1/plaintiff filed a suit for declaration and permanent injunction claiming therein that he is owner in possession of the suit property which was purchased in the auction proceedings and the defendants/petitioner have no right or interest in the same. The petitioner being one of defendant entered appearance and submitted an application under Order VII Rule 11 of The Code of Civil Procedure (V of 1908) for rejection of plaint. The application was resisted by respondent No.1 and the same was resultantly dismissed on 10th of December, 2011. The petitioner, feeling aggrieved from the said order filed revision petition in terms of Section 115 of The Code of Civil Procedure (V of 1908), however the same was also dismissed vide order dated 01st of April, 2013 by the learned Additional District Judge, Kasur being barred by time, hence this petition.
3. Learned counsel for the petitioner submitted that the suit was not competent before the Civil Court as the matter in issue arose from the proceedings conducted under The Punjab Privatization Board Act, 2010. He added that the Civil Court was not vested with jurisdiction to entertain the suit in view of Section 32 of the said Act. Learned counsel contended that the application filed by the petitioner for rejection of plaint was wrongly dismissed and the learned revisional court has failed to exercise its lawful jurisdiction and dismissed the revision petition solely on the ground of limitation. He maintained that revisional court was bound to exercise the jurisdiction in terms of Section 115 of The Code of Civil Procedure (V of 1908) when once it has come in the record that the Civil Court has wrongly assumed the jurisdiction.
4. Conversely, learned counsel for respondent No.1 defended the orders passed by the courts below. He submitted that the Civil Court was competent to adjudicate the suit in the light of provisions contained in Section 9 of The Code of Civil Procedure (V of 1908). Learned counsel argued that the revision petition was barred by time and it was rightly dismissed by the learned Additional District Judge.
5. I have heard the learned counsels for both the sides and also perused the record with their assistance.
6. The instant petition was admitted for regular hearing vide order dated 04th of June, 2013 on the sole ground that whether in terms of Section 32 of The Punjab Privatization Board Act (IV of 2010)
(hereinafter referred as "The Act, 2010"), the Civil Court lacks jurisdiction and the matter in issue is exclusively triable by High Court. Before dilating upon the impact of Section 32 of Act ibid, it is necessary to have a glance on the resume of facts. The respondent No.1 purchased 33 Kanal 08 Marla of land from Khasra No.2808 alongwith old banglow and quarters of village Katlohi Tehsil and District Kasur in an auction proceedings held by the Punjab Privatization Board in pursuance to which rights were transferred to respondent No.1 by way of sale deed No.4846 dated 13th of June, 2005. The respondent No.1 started claiming the proprietary rights in the property bearing Khasra No.115 measuring 23 Kanal 12 Marla situated in Mauza Gaddoke Tehsil and District Kasur which is adjacent to the property purchased by him in open auction, being part of said property. Without commenting upon the right of respondent No.1 qua suit property, it is observed that at present this Court is to see as to whether the Civil Court is vested with the jurisdiction to entertain the suit.
7. There is no cavil that the alleged right of respondent No.1 hinges upon the purchase of property which was auctioned by the Punjab Privatization Board in pursuance to the provisions of "The Act, 2010". The said Act was promulgated in order to carry out a competitive, fair and transparent process for effecting privatization of the properties of the Government and to provide for an expeditious mechanism to resolve disputes relating to privatization and to provide for ancillary matters. In view of its special status adjudication of matters arising therefrom was given special preference and Chapter VII was specially inserted in "The Act, 2010" which deals with the matter of adjudication. Section 32 of "The Act, 2010" confers exclusive original civil and criminal jurisdiction to High Court to adjudicate and settle all matters related to arising from or under or in connection with the Act ibid. The same is reproduced below for ready reference and convenience:- "32. Jurisdiction of High Court. Notwithstanding anything contained in any other law for the time being in force, the Lahore High Court shall exercise exclusive original civil and criminal jurisdiction
(a) to adjudicate and settle all matters related to, arising from or under or in connection with this Act;
(b) to adjudicate and settle all matters transferred to it pursuant to section 35; and (c) to try offences punishable under this Act." It is clearly evident from the above quoted provision that for the adjudication of all the matters arising from the proceedings conducted under "The Act, 2010", it is only the High Court which is vested with exclusive original civil as well as criminal jurisdiction.
Section 35 of "The Act, 2010" further provides that all legal proceedings whatsoever and matters related to or under or in connection with or arising from privatization, the privatization process or privatization programme pending on the commencement of this Act before any forum, tribunal or Court other than the Federal Shariat Court or Supreme Court of Pakistan, shall stand transferred to the Lahore High Court. The transfer of pending proceedings is thus automatic as per mandate of Section 35 of "The Act, 2010". The assumption of jurisdiction by the learned Civil Court was thus not warranted under the law.
8. The exercise of jurisdiction by the Civil Court in the garb of provisions contained in Section 9 of The Code of Civil Procedure (V of 1908) is even not tenable from the plenary interpretation of the said provision which reads as under :- "9. Courts to try all Civil Suits unless barred. -- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature expecting suits of which their cognizance is either expressly or impliedly barred." It is manifestly clear from the above that the Civil Court is the Court of plenary jurisdiction and scope of Section 9 of The Code of Civil Procedure (V of 1908) can be extended to the claims of all civil nature except where the jurisdiction is expressly or impliedly barred. As already observed, the matter in issue arises out of the proceedings conducted under "The Act, 2010" and being special law it bestows the original jurisdiction to the High Court exclusively so, I am of the considered view that under the circumstances, the petitioner was justified to move an application under Order VII Rule 11 of The Code of Civil Procedure (V of 1908).
9. The revision petition filed by the petitioner was though brought before the learned Additional District Judge beyond ninety days as prescribed by Section 115 of The Code of Civil Procedure (V of 1908) but it was not expected from the revisional court to shut its eyes on such a glaring illegality and perpetuate a wrong only on account of limitation. The jurisdiction in terms of Section 115 of The Code of Civil Procedure (V of 1908) is ordinarily circumscribed and limited only to the matters strictly falling under the circumstances narrated in the said provision but when once it comes to light that the case before the revisional court is the outcome of illegalities and material irregularities envisaged in Section 115 of The Code ibid then the jurisdiction of the revisional court becomes wider and it is then paramount duty of such court to come in the aid of justice rather to add a step for injustice. In such an eventuality even bar of limitation cannot be pleaded as a hurdle. Guidance in this respect can be sought from "Haji REHMDIL versus THE PROVINCE OF BALOCHISTAN and another" (1999 SCMR 1060) wherein the Honourable Supreme Court of Pakistan held as under :- "The High Court correctly found that the appeal taken by the official functionaries was inexplicably barred by time and so also the revision brought to itself. Now, section 115(1), C.P.C. Confers two distinct kinds of jurisdictions: one, the normal, where the revisional powers are invoked by an aggrieved party, and the other, where the Court may act suo motu. These jurisdictions, distinct and independent, were, inter alia, recognized in Manager, Jammu and Kashmir, State Property v. Khuda Yar, PLD 1975 SC 678. Relevantly, the following was observed:-- "The scope of the revisional powers of the High Court though circumscribed by conditions of excess of jurisdiction, failure to exercise jurisdiction, illegal exercise of jurisdiction, is nevertheless very vast and corresponds to a remedy of certiorari and in fact goes beyond that at least in two respects inasmuch as: Firstly, its discretionary jurisdiction may be invoked by the Court suo motu, and secondly, the Court 'may make such order in the case if it thinks fit'.
In Rangrao v. Pandurang and another (AIR 1924 Naq. 154), it was held that under section 115 of the C.P.C., the High Court could and might deal with a case under that section without there being any application by any of the parties and may in the special circumstances pass such orders as it thinks fit. In this case the Small Causes Court passed a decree against defendant No.2 and exonerated defendant No.l and on revision the High Court exonerated defendant No.2. It was held that despite the fact that the plaintiff had not appeared in revision, he could still be given a decree against defendant No. 1.
In M.H. Saya & Co. v. Wazir Ali Industries Ltd. The view taken by this Court was that it was competent for a stranger to a suit or proceedings to file an appeal, if he was adversely affected by the order passed in such suit or proceeding." It seems to us that in cases, involving patent abuse of jurisdiction and injustice, the Court, exercising powers under section 115, C.P.C. Even where the revision petition, brought by an aggrieved party, is bared by time, still has a discretion to invoke its own suo motu revisional authority to advance justice and to suppress mischief, albeit only when a jurisdictional error, in contemplation of the section, is encountered. It need hardly be reiterated that technicalities, unless resorted to in aid of justice and fair play, have little room in the wide field occupied by judicial dispensations. Deviating from the earlier rule that where jurisdiction vests in a Tribunal to decide, the Tribunal can decide rightly as well as wrongly, the current view of this Court, as, inter alia, reflected in U.S. Corporation of Pakistan Ltd. v. L.A.T., PLD 1987 SC 447, is that where jurisdiction vests to decide a controversy, such can only be decided rightly and not otherwise.
Further, where a Tribunal goes wrong in law, it also goes outside the jurisdiction conferred on it by law." The same view was further reiterated by the Hon'ble Apex Court in the case of "Raja HAMAYUN SARFRAZ KHAN and others versus NOOR MUHAMMAD" (2007 SCMR 307). Even this Court in the case of "ILAM DIN versus HASSAN DIN and others" (PLD 2006 Lahore 121) has adopted the same principles.
The relevant extract from the judgment supra is reproduced below :- "3. Learned counsel for the petitioner however, contends that in view of the circumstances of the present case, as noted in the admitting order dated 22-6-2004, this is a fit case in which suo motu jurisdiction of the Court under section 115, C.P.C. Should be exercised. He has also cited the case titled Haji Rehmdil v. The Province of Balochistan and another (1999 SCMR 1960). Considering the said precedent and also the circumstances of the case noted in the admitting order, it does appear to me that the learned Courts below fell into material error while decreeing the declaratory suit filed by the respondents and granting the permanent injunction prayed for by them. If this error does in fact exist and is not rectified, it will result in grave miscarriage of justice.
4. In these circumstances, the suo motu revisional jurisdiction of the Court is available and must be exercised to ensure that the ends of justice are met. Failure to do so would constitute 'abdication of the important supervisory function with which the High Court is invested. In the admitting order. I have noted some of the material errors in the judgments of the learned Courts below. I, therefore, intend to examine the matter in detail and, if material error in the exercise of jurisdiction by the Courts below is established, to correct such error."
In view of well recognized principles laid down in the judgments supra, the impugned judgment of the learned Additional District Judge cannot sustain. The learned Additional District Judge being equipped with revisional powers was supposed to exercise its jurisdiction for the advancement of ends of justice when it comes to his notice that the lower court has committed any illegality or material irregularity which comes within the ambit of Section 115 of The Code of Civil Procedure (V of 1908). The Constitutional jurisdiction is not for the purpose to perpetuate a wrong but it is to be exercised in order to correct and rectify the illegalities committed by the Courts, Tribunals or the Executive while performing their functions. This Court while exercising Constitutional jurisdiction cannot sit as a mere spectator and to shut its eyes even after observing legal infirmities.
10. The order of revisional court is not a sacrosanct which cannot be interfered with in any of the circumstances. Whenever it is established that the revisional court has committed some illegality resulting into passing of an order which is perverse and per-functionary, this Court is competent to interfere with the revisional order in exercise of its Constitutional jurisdiction as ordained in Article 199 of The Constitution of The Islamic Republic of Pakistan, 1973. Guidance in this respect can be sought from "MUHAMMAD ANWAR and others versus Mst. ILYAS BEGUM and others" (PLD 2013 Supreme Court 255) wherein the Hon'ble Supreme Court of Pakistan held as under :- "
12. The argument of the learned counsel for the petitioner that the order of the Revisional Court could not be interfered in the constitutional jurisdiction, because a Court having the jurisdiction to decide the matter, has the jurisdiction to decide it rightly or wrongly, and reliance having been placed upon the two judgments noted above; suffice it to say that in the noted dicta, the provisions of Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973 have not been taken into consideration, which reads as:-- "4. (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen wherever he may be, and of every other person for the time being within Pakistan.
(2) In particular--
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and (c) no person shall be compelled to do that which the law does not required him to do." Article 4 (ibid) mandates that it is the inalienable right of every citizen to enjoy the protection of law and to be treated in accordance with law and thus where an order has been passed by any forum or Court, including the Revisional Court, which is patently illegal and violative of law, especially the express provisions and the spirit of law, which (order) if allowed to stay intact tantamounts to, and shall cause serious breach to the legal rights of the litigants and shall cause prejudice to them, the learned High Court in appropriate cases while exercising its constitutional jurisdiction can ratify the illegality and violation of law, and undo the harm caused by the order of such (revisional) Court "
Even this Court in the case of "MUHAMMAD AKBAR versus MUHAMMAD MALIK and another" (PLD 2005 Lahore 1) while dealing with similar preposition has held that :- "7. Anyhow, as regards the objections of the learned counsel for the respondent, suffice it to say that, it is not an absolute rule that an order passed in revision, cannot at all be interfered in the Constitutional jurisdiction. In my view, where the justice demands, an exception can be taken thereto and the High Court besides Article 199 of the Constitution, can invoke its supervisory jurisdiction under Article 203 of the Constitution, to correct the orders, when are perverse, fraudulent, erroneous and have been passed either by express violation or the ignorance of any provision of law. Because the order of the learned revisional Court is of the above nature, therefore, I deem it proper to correct it in my Constitutional jurisdiction .."
11. In view of above discussion no room for any other inference is left except that the learned Civil Judge, while rejecting the application of the petitioner under Order VII Rule 11 of The Code of Civil Procedure (V of 1908) has completely ignored the provisions of Sections 32 and 35 of "The Act, 2010" and the learned Additional District Judge was oblivion of its revisional powers as ordained in Section 115 of The Code of Civil Procedure (V of 1908).
12. For the foregoing reasons, the instant petition is allowed, consequently the order dated 01st of April, 2013 passed by the learned Additional District Judge, Kasur as well as order dated 10th of December, 2011 passed by the learned Civil Judge 1st Class, Kasur are set aside being illegal and unlawful. As a sequel thereof, the suit pending before the learned Civil Court stands transferred to this Court by virtue of Section 35 of "The Act, 2010". Office to transmit the copy of this judgment to the learned District Judge, Kasur, who shall immediately make arrangements for transmission of record of suit titled "Tahir Azam versus Province of Punjab etc." Office is further directed that on receipt of record, to assign a fresh number to the said suit and place the same before the Court as a regular suit to be tried on original civil jurisdiction side.